Violence Jurisprudence Research Articles

Violence, Law, and Politics: Hannah Arendt and Robert M. Cover in Comparative Perspective

Despite many significant points of intersection between his work and that of Hannah Arendt, the legal scholar Robert Cover largely declined to engage her perspective, which posed major challenges to his own. While scholars seeking to rethink Cover's legacy in order to develop a jurisprudence of violence have criticized Cover's acquiescence to the Hobbesian model of the sovereign state, they have similarly ignored Arendt's critique of the Hobbesian model and her attempts to build an alternative to it. This article examines central issues of convergence and divergence between Arendt's and Cover's approaches to law, politics, and violence with the aim to redress this neglect of Arendt's perspective. It begins by focusing on their interpretations of the role and significance of the courtroom trial. It then compares their analysis of the character, effects, and implications of domination as a type of organized power and as a means of conceptualizing punishment, before it concentrates on their instrumental conception of violence, the issue of justification, and its relationship to power. The article concludes by arguing that Arendt's approach, which situates an analysis of law and violence within a broader critique of modernity, provides a more trenchant critical framework for examining the rise of the carceral state than does Cover's.

The culturalisation of identity in an age of ‘ethnic conflict’ – depoliticised gender in ICTY wartime sexual violence jurisprudence

Gender-based violence, particularly mass sexual violence against women in situations of armed conflict, has been a greatly topical issue within recent years in feminist legal scholarship, the media and the surrounding debate. The armed conflict in the former Yugoslavia has notably contributed to the increased visibility of sexual violence in international law with significant legal developments emerging from the International Criminal Tribunal for the Former Yugoslavia (ICTY). While the prosecution of sexual violence has become a cause célèbre for many feminist advocates, this ‘moment of victory’ has coincided with a more problematic trend in legal scholarship of representing armed conflict through a predominantly ‘ethnic’ lens. This article explores the legal modalities by which gendered subjectivities are brought to being by international criminal law in an age of ‘ethnic conflict’. It examines the intersection of gender and ethnicity in ICTY wartime sexual violence jurisprudence and questions whether such readings have produced ‘ethnicised’ victims. Moreover, it explores whether feminists have been complicit in the perpetuation of hierarchical and dichotomised gendered subjectivities that have done little to dispel deeply entrenched stereotypes of women in international law. It asks whether these feminist tendencies can be attributed to a trend in late modernity of ‘culturalising’ identity so as to eliminate from view power and history as the driving forces of armed conflict.

Stories of Pain and the Pursuit of Justice: Law, Violence, Experience and Jurisprudence

Following Robert Cover's essay on law's “field of pain and death”, Austin Sarat and Thomas Kearns have presented the bases for a “jurisprudence of violence,” part of which requires including experiential accounts of (law's) violence in legal theory. This article explores these writers' understanding of violence, its relationships with law and the relevance of its experiential impact for jurisprudence, before focusing on two methodological issues. First, it argues that discussion of violence needs to be clearly situated and outlines a conceptual map as the basis for further analysis. Second, it questions the concept of experience in this context and addresses some key problems involved in articulating violent experience in textual discourse.

‘As a glow brings out a haze’: understanding violence in jurisprudence and Joseph Conrad’s fiction

This paper explores connections between jurisprudential discussion of pain and violence and the methodology of law and literature. Starting with Robert Cover’s work on law’s ‘field of pain and death’, it argues that the theory on which he relied in rejecting literary approaches to law can equally justify a turn to fiction in understanding violence. It then considers the experiential dimension of Austin Sarat’s and Thomas Kearns’s jurisprudence of violence and argues that interdisciplinary perspectives, including relevant fiction, can assist in engaging with the challenges of capturing such experience in textual form. Situating the argument in relation to broader law and literature rationales, the paper finds relevant illustrations in Joseph Conrad’sHeart of Darkness, The Secret AgentandUnder Western Eyes. It argues that Conrad’s stories represent dimensions of pain and violence that might otherwise be irreducible to non-fictional textual discourse, whilst also expressing the limits of that representation.

Violence and the Private: A Girardian Model of Domestic Violence in Society

The justice system has progressed considerably with regards to domestic violence over past few centuries. America has a long history of treating domestic violence differently from public violence. From the nation's founding through the mid nineteenth century, domestic violence jurisprudence was shaped by the common-law prerogative of chastisement, which allowed a husband to assault his wife within certain reasonable limitations. Though formal recognition of chastisement faded, twentieth-century jurisprudence replaced it with privacy justifications for avoiding enforcement of civil and criminal penalties in intramarital disputes. Recent rates, however, show enforcement of criminal penalties against perpetrators of domestic violence on par with, or even exceeding, enforcement in cases of public violence. Yet, as cases like that of Brett and Kim Myers demonstrate, echoes of that history can still be heard in today's legal system. The questions how domestic violence differs from public violence and why it might demand different legal treatment remain relevant. Rene Girard, a French religious anthropologist, argues in his seminal 1972 work, Violence and the Sacred, that violence is an inevitable element of society. Violence exists, and once aroused it threatens to snowball throughout society and cause chaos. Yet society uses ritual to alleviate violence on the theory that violence can be channeled into a sacrificial victim that, by being destroyed, can both provide an outlet for violence and restore social order. The American legal system has historically been unwilling to heavily penalize domestic violence - private violence - because, as I shall demonstrate, it has tacitly viewed victims of such violence as sacrifices providing an outlet against public violence. This Essay will explore the link between the Girardian model of sacrifice and the American legal system's historical treatment of domestic violence. In Part I, I will discuss the evolution of that treatment, looking at examples in the criminal justice system from police and courts. In Part II, I will turn to the Girardian sacrifice structure as a descriptive model of this domestic-violence tolerance, incorporating ideas from other ritual anthropologists. Finally, in Part III, I will explain how this new understanding can inform feminist theories of domestic violence and our practical understanding of the public-private relationship.

Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court Practice

ABSTRACTFreedom from domestic violence is a central right that will be realized through a transformation of culture. Law, embedded within the evolving cultural transformation, plays a necessary, though not sufficient, role in social change. This article reviews the development of family and domestic violence law. It compares and contrasts the core precepts of family and domestic violence jurisprudence with resulting practice and policy ramifications arising from the inherent substantive tensions. Finally, critical civil legal system actors, courts, and attorneys are challenged to apply and practice domestic violence law in the struggle to afford justice for all.

The Ethics of Violence: Necessity, Excess, and Opposition

In this Essay, I renew my reading of Cover's writings under the guidance of Austin Sarat and Thomas Kearns's recent collection of essays entitled Law's Violence. The essays expand the foundation for an alternative vocabulary describing, explaining, and justifying law's violence. Even as it expands, however, the foundation stands lacking. Nowhere in the growing vocabulary of violence is there reference to lawyers as jurispathic agents or to lawyers' interpretive practices as discrete forms of normative violence. Without an account of lawyers as agents of interpretive violence, we overlook the normative, rather than the physical or psychological, pain experienced by the objects of law: plaintiffs, defendants, victims – in short, clients. It is plain error to overlook the pain experienced by clients when we – as lawyers – act to erase their identities, to silence their narratives, and to suppress their histories during advocacy. The purpose of this Essay is to cure that error. The Essay is divided into four parts. Part I examines the jurisprudence of violence conceived by Cover and extended by Sarat and Kearns. Employing Wanda Field's hearing as a case study, I enlarge that jurisprudence to address lawyers' interpretive violence and clients' normative pain. Part II assesses the argument from necessity offered to explain and to justify lawyers' acts of interpretive violence. Citing Field's case, I note the forces of law and institutional logic that urge this necessitarian defense. Part III analyzes the limits of the necessitarian justification for lawyers' violence. Calling again on Field's case, I distinguish between descriptive and performative speech acts in legal advocacy in order to establish a boundary line of excess violence. Part IV considers an alternative strategy of opposing and thereby curbing lawyers' necessitarian justification. Pointing to the intersection of normative and narrative violence in Field's case, I propose reopening lawyers' meaning-making practices of reading and speaking to test the limits of the speakable in advocacy. The strategy of reopening, testing, and mapping the limits of the speakable allows client identity, narrative, and history to emerge in the lawyering process.